ولو جرى العقد بين الفضوليين أو بين الفضولي والأصيل جاز بالإجماع
هو يقول لو كان مأمورا من الجانبين ينفذ فإذا كان فضوليا بتوقف وصار كالخلع والطلاق والإعتاق على مال
ولهما أن الموجود شطر العقد لأنه شطر حالة الحضرة فكذا عند الغيبة وشطر العقد لا يتوقف على ما وراء المجلس كما في البيع بخلاف المأمور من الجانبين فإنه ينتقل كلامه إلى العاقدين وما جرى بين الفضوليين عقد تام وكذا الخلع وأختاه لأنه تصرف يمين من جانبه حتى يلزم فيتم به
If the marriage [contract] was implemented by two fudhuli (unauthorised person) or a fudhuli and an asil (the person getting married), it is valid [albeit pending approval] in accordance to ijma.
[In the case where one fudhuli acts on behalf of two people and gets them married without authorisation, Imam Abu Yusuf says that it is valid but pending and Shaykhayn say that it is invalid].
[Imam Abu Yusuf] says, if [one represented] was commanded by both parties1 [nikah] would be implemented, so in the case of the fudhuli [the nikah] would be pending [their permission]. This is like the case of khula’, talaq and freeing a slave in exchange for money.2
According to [Imams Abu Hanifah and Muhammad], only one part of the [marriage] contract is present.3 Because in the present condition there is only one part, the same will be case in the absent [condition].4 Part of a contract does not extend beyond the gathering as is in [the case of] sale.5
Likewise, it is completed in khula’ and its sister [cases] as it is a pledge from his side which is binding.9
- 1From the side of the bride and groom
- 2If the husband in the absence of the wife where to say, “I do khula with my wife in exchange for £1000” or “I give my wife talaq in exchange for £1000”, when the wife finds out, if she accepts, divorce will occur. The same is the case if the master in the absence of the slave said, “I free my slave in exchange for £100”, and then when the finds out accepts offer. The point Imam Abu Yusuf is making with these examples is that an offer was made by the husband or the master but required the approval of the wife or slave. The offer was deemed pending until the wife or slave approved. The case is the same for the action of a fudhuli in nikah.
- 3Only the offer occurred, and acceptance is absent as a single person cannot make both an offer and acceptance from their own side. Like in a sale, a person cannot be the buyer and the seller.
- 4As there was only the offer when the contract was initiate in the gathering, there will only be an offer without acceptance outside the gathering. An offer without acceptance cannot be accepted after the gathering in a marriage contract.
- 5Offer and acceptance must happen in the same gathering for a marriage or a sale to be valid.
- 6Lit: commanded
- 7Bride and groom
- 8It is as if two separate statements were made by two individuals at the time of the contract. Hence, at the time of the contract there was both offer and acceptance.
- 9In the case of two fudhuli, the offer and acceptance occurred at the time of the contract by two parties, so the contract in essence is valid albeit pending approval. As opposed to the case of one fudhuli, there is no valid contract so the issue of approval does not even arise.
Subject: Fiqh, Hidayah
Author: M. Saifur Rahman Nawhami